Wednesday, 22 February 2012

Rawls and the Definition of Civil Disobedience

Rawls' account of the "definition" of civil disobedience follows after the discussion of the sense in which there is a "duty" to follow unjust laws, which latter was described in the previous posting. The topic of civil disobedience takes up the rest of Chapter VI and was also addressed in an article of 1969 that I posted on here.

The account that takes up the rest of Chapter VI of Theory is included in order, as Rawls puts it, to "illustrate the content of the principles of natural duty and obligation". Hence the question of civil disobedience is viewed by Rawls as an exemplary question with regard to such principles. The theory is, as it was in the earlier 1969 article, narrowly defined as it describes actions that are related to a nearly just society which has an established democratic authority. It is not intended to be applicable to cases where resistance to patently unjust social and legal orders is at issue. However, whilst this element of the theory of civil disobedience is of a piece with the earlier 1969 article, Rawls is careful in the account in Theory to distinguish three parts of the theory of civil disobedience. The three parts encompass the definition of civil disobedience, its justification and the role it plays within a constitutional system. The earlier piece, by contrast, was intended primarily to give a justification of civil disobedience although the basic definition that Rawls gives in Theory is not different from the one he gave in the 1969 article. What is distinct, however, is the way that he now defines civil disobedience in such a way that it is made distinct both from conscientious refusal and militancy.

The general definition, that is unchanged from the 1969 article, is that civil disobedience is "a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government". This definition encompasses a number of elements but it is useful, in light of Rawls' purpose of distinguishing the phenomena of civil disobedience from conscientious refusal to see that his definition of civil disobedience describes the latter as a conscientious act. What, as we will see, distinguishes it as a conscientious act, from conscientious refusal, is its political character. The second point worth immediate attention is the reference to the kind of political act that civil disobedience is. It is the kind that seeks to bring about a change in "law or policies", not one that is aimed at destabilising the government as such and certainly not one that challenges the system of justice as a whole. This is how the description of civil disobedience is distinguished from action of a revolutionary (or as Rawls also terms it) "militant" kind.

Having made this initial pass at how civil disobedience will be given a specific status that is intermediate between conscientious refusal and "militancy" Rawls provides two glosses on the definition he has just given of civil disobedience. The first gloss concerns the way that such disobedience involves breaking the law. It is not a requirement that, for the act to be understood as civilly disobedient, that the law that is broken in performing the act, be the same as the law protested against. There are clear reasons for this since the law protested against could be one the breakage of which involved severe penalties or not to be capable of being engaged with by an ordinary citizen. So the civilly disobedient act can be one that is not directly aimed at the law protested but which instead indirectly aims at it by means of expressive law-breaking.

The second gloss, however, is that the civilly disobedient act, to be seen as one, should decidedly be one that does break the law and does not merely present a test case for a constitutional or legal decision. The latter case would be one where, should the law broken be subsequently upheld, the law-breaker would then come to accept the legitimacy of the law which they had broken. In a case of civil disobedience subsequent legal opinion is not to the point concerning the status of the law-breaking. The civilly disobedient actor does not renounce their act simply because subsequent legal opinion tells them the original law is sound in terms of the legal system's rules. So whilst the act need not be directly aimed at the law protested it has to be an act whose status as justified is not disclaimed by the one performing it regardless of normally decisive legal statements.

These two glosses refer to two ways in which civil disobedience is related to the law. The next topic Rawls discusses concerns the relationship of civil disobedience to politics. There are two different ways that Rawls takes civil disobedience to be related to politics. On the one hand, civilly disobedient acts are addressed to the majority that is assumed to at least tacitly support the status quo and this address indicates it is part of the public sphere. On the other hand, civilly disobedient acts are guided and regulated by political principles, not principles of personal morality or religious doctrines. So acts of civil disobedience invoke "the commonly shared conception of justice that underlies the political order" or, to put this point another way, appeal to the principles of justice in order to point up ways in which the laws protested against are taken to be in sharp divergence from them.

At this point Rawls moves on to the point that the civilly disobedient act is a public act. This is another way in which the act is political. It is not a secretive act, intended to evade surveillance, it rather takes place in the light of day and is intended to be known to all. This is, indeed, essential to its character of appealing to the sense of justice of the majority. Attached to this public quality of civil disobedience for Rawls is the fact that the act in question is one that is non-violent. This non-violent quality is part of the civic nature of the civilly disobedient act as violence will impair its ability to act as a mode of address to the majority. It is also non-violent, on Rawls' conception, due to the claim that it is an act that expresses disobedience "within the limits of fidelity to law" although it is right at the edge of such fidelity. Part of what is involved in such fidelity is another reason for the publicity of the act. Given its publicity, the act will incur sanction from legal authority as an evident corollary and this is accepted by the one undertaking the act. This willingness to undergo the penalty, despite the assurance the one undertaking the act has that their action was a just one in reaction to unjust circumstances, is indicative of a claim on the moral consideration of the community.

The references to the non-violent and public quality of civilly disobedient acts allows Rawls to contrast such acts with those of the "militant" or revolutionary as the latter acts under no obligation to either publicity or acceptance of legal consequences. The reason why such action, in contrast to that of civil disobedience, has no necessary relationship to publicity, is that it is part of a settled conviction that the general system of justice, and not merely some element of its application, is deeply wrong. Whilst such action would have to be addressed within a Rawlsian conception of non-ideal theory in relation to basic structures that were not taken to be just, it has no place within the theory of justice but rather defines an action, in relation to a nearly just society, that is itself unjust.

However, Rawls is rather more concerned with describing the definitional difference between civil disobedience and conscientious refusal than with demarcating civil disobedience from militancy. This second part of his task requires him to provide an extended description of conscientious refusal that mirrors his account of civil disobedience (and such an extended account of militancy is not provided for reasons indicated). Conscientious refusal is defined by Rawls as "noncompliance with a more or less direct legal injunction or order". Notably, the inclusion here of reference to a specific legal injunction or order shows that conscientious refusal is distinct from civil disobedience in the sense that it cannot be indirect. It is the specific law protested against that is here broken. An example would be that of a pacifist who refused to heed the call-up. Given that the call-up specifically requires the pacifist to be engaged in the conflict to which they object they can only pursue their conviction in direct violation of it. There is a slight complication since it may be possible to evade the order without being detected and so to act covertly which would be, states Rawls, an act of conscientious evasion but notably this brings out that conscientious acts, considered merely as such, lack the necessary reference to publicity that we disclosed as essential to civil disobedience. Given this difference, there is an immediate sense in which conscientious refusal is not political in the way that civil disobedience is.

Thus far we have seen that conscientious refusal has to be direct and is not necessarily public. However, a further contrast between it and civil disobedience is that conscientious refusal is not an address aimed at the sense of justice of the majority. In not being so it is removed from the public sphere in another way and further indicated as a non-political form of action. The one who undertakes acts of conscientious refusal is like the militant in the sense that they lack confidence in the settled principles of justice of the society they belong to. The principles appealed to in conscientious refusal also need not be political. Religious or moral principles that exceed the limits of the political are frequently appealed to directly in acts of conscientious refusal. 

The cases of conscientious refusal pose certain problems for the theory of justice and some of these problems have arisen explicitly in recent cases. So, for example, religious persons who refuse to undertake actions they declare in violation of their conscience and yet are public employees may lose their employment as they are ceasing to act in ways that have civil validity. In such cases, however, the religious convictions are prompting action that violate the requirement of respect for equal liberties (the first principle of justice) and so cannot be taken to have political rationale. It is precisely due to such a claim that there is action involved here which has no basis for appeal to the general sense of justice.

This does not mean that there is nothing politically instructive involved in actions of conscientious refusal as the case of the pacifist illustrates well. Pacifists are generally treated with a margin of respect and given alternative occupations once their adherence to their position is validated. The reason for this treatment, not one accorded in general to those who appeal to principles of conscientious refusal, is due to the degree of affinity that exists between pacifist principles and political ones. There is an inherent reference within pacifist statements to general criteria that are related to, if also distinct from, political ones and the arguments of pacifists contribute to vigilance with regard to justifications for conflict and in this way serve a civil end. 

The discussion in this posting has concerned only the general definition of civil disobedience and the contrast between it and the cases of conscientious refusal and revolutionary principles. However nothing in this discussion has as yet given a clear argument justifying civil disobedience or indicating the nature of the kinds of conscientious refusal that might be politically justified other than to specify some kind of connection to the principles of justice. This question of justification will be the subject of the next posting on Rawls.

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